The Latest Scoops from CNN and the New York Times: A Quick and Dirty Analysis

CNN and the New York Times this evening published dueling scoops on former Trump campaign chairman Paul Manafort.

As Jim Comey might put it: Lordy, there appear to be tapes.

First, CNN reported that U.S. government investigators wiretapped Paul Manafort, the onetime Trump campaign chairman, both before and after the 2016 presidential election. According to CNN, the court that provides judicial oversight for the administration of the Foreign Intelligence Surveillance Act authorized an FBI investigation into Manafort in 2014 focused on “work done by a group of Washington consulting firms for Ukraine's former ruling party.” Manafort’s firm, among notable others, had failed to register under the Foreign Agents Registration Act (FARA) for work with the pro-Russian Ukrainian regime. This first investigation was reportedly halted in 2016 by Justice Department prosecutors because of lack of evidence, but a second warrant was later issued in service of the FBI’s investigation into Russian influence of the election and potential ties between the Trump campaign and Russian operatives.

While CNN did not report a known start date for the second surveillance period, it suggested that the FBI had already “noticed what counterintelligence agents thought was a series of odd connections between Trump associates and Russia” by the time Manafort left the campaign in August. CNN describes as unclear whether FBI surveillance of Manafort took place while he was residing in Trump Tower, and there is no new evidence in this report to indicate that Donald Trump himself was under surveillance. The Justice Department and the FBI have denied that Trump was subject to wiretapping.

Shortly after CNN’s story broke, the New York Times published its own scoop regarding Manafort. The story is largely a scene piece, but includes a number of highly significant facts. The Times catalogs what it describes as “aggressive tactics” that Special Counsel Robert Mueller has employed in his investigations of Trump associates, specifically Manafort and former national security adviser Michael Flynn. First, the Times reveals that after the July raid on Manafort’s residence, Mueller’s prosecutors warned Manafort that he would be indicted. The story also reports that Mueller’s team has subpoenaed several of Manafort’s associates, including Jason Maloni, a former Manafort spokesman; the heads of Mercury Public Affairs and the Podesta Group; and one of Manafort’s former lawyers (with Mueller’s team claiming an exception to attorney-client privilege). While White House officials have been given the opportunity to appear for “voluntary interviews” instead of before grand juries, Manafort’s associates have been subpoenaed, marking a less deferential approach to the Manafort investigation. The Times suggests that Mueller, leaving no rock unturned, is investigating Manafort for “possible violations of tax laws, money-laundering prohibitions and requirements to disclose foreign lobbying.”

These stories come on the coattails of recent news about the Mueller investigation, including the Sept. 15 Wall Street Journal report that Facebook gave Mueller records of Russian ad purchases, apparently in response to a warrant. Earlier this month, the New York Times reported that Mueller had obtained a letter drafted by Trump detailing his rationale for firing former FBI director James Comey.

Let’s start with a key disclaimer: We don’t know that all the reported facts in these stories are correct, and we don’t know what other facts not reported may complicate the picture. So far, no other journalistic organization seems to have independently reported the key facts in these stories, giving additional reason for caution, for now. That said, the following are some initial questions on people’s minds, along with some early and necessarily preliminary answers that could change as facts continue to develop.

What does it mean that Manafort was informed he will be indicted?

The Times’ revelation that Manafort has been informed that he will be indicted involves a pretty spare set of reported facts. In fact, there’s really only one fact: “The special counsel, Robert S. Mueller III, then followed the house search with a warning: His prosecutors told Mr. Manafort they planned to indict him, said two people close to the investigation.” The language here is not legally precise. It could mean that Manafort has been formally informed that he is an investigative “target”—a designation that means that prosecutors intend to ask a grand jury to indict him. It could, instead, suggest something less than that—a kind of verbal aggressiveness designed to put pressure on him to cooperate.

The significance of this is that it means that Special Counsel Robert Mueller’s investigation has reached a critical stage—the point at which he may soon start making allegations in public. Those allegations may involve conduct unrelated to L’Affaire Russe—that is, alleged bad behavior by Manafort and maybe others that does not involve the Trump campaign—but which may nonetheless serve to pressure Manafort to cooperate on matters more central. Or they may involve conduct that involves his behavior with respect to the campaign itself. Note that if Manafort cooperates, we may not see anything public for a long time to come. Delay, that is, may be a sign of success. But in the absence of cooperation, the fireworks may be about to begin.

This is not the first indication in recent weeks that the Mueller investigation is nearing the litigation stage. The fact that Mueller’s staff executed a search warrant against Manafort in July—which was first reported Aug. 9 by the Washington Post—was telling, implying that the special counsel had shown a court probable cause of criminal activity. The Times rightly notes that the circumstances of the execution of the warrant were aggressive:

It is unusual for a prosecutor to seek a search warrant against someone who, like Mr. Manafort, had already put his lawyer in contact with the Justice Department. No search warrants were executed during the investigations by Mr. Starr or Patrick J. Fitzgerald, a special counsel appointed during the George W. Bush administration to investigate the leak of the name of a C.I.A. officer.

To get the warrant, Mr. Mueller’s team had to show probable cause that Mr. Manafort’s home contained evidence of a crime. To be allowed to pick the lock and enter the home unannounced, prosecutors had to persuade a federal judge that Mr. Manafort was likely to destroy evidence.

Said [Jimmy] Gurulé, the former federal prosecutor, “Clearly they didn’t trust him.”

All of this suggests that there’s something significant the public does not yet know about the Manafort case—some reason why Mueller would, with a judge’s permission, behave this way.

The Wall Street Journal’s report that the Mueller investigation has obtained a separate warrant for materials from Facebook connected to Russian ad buys during the campaign—which again suggests that a judge found probable cause of a crime—is further indication of an investigation reaching critical mass. Combined with a flurry of stories about subpoenas, grand-jury appearances and other activity, it’s reasonable to expect that Mueller is moving forward on a number of different fronts and is getting close to entering a litigation phase.

The key question is what he will allege, to what extent it will deal with campaign activity, and against whom he will allege it.

What does the fact of a FISA warrant mean?

Under Title I of the Foreign Intelligence Surveillance Act, a person can be targeted if the government establishes probable cause that he or she is the “agent of a foreign power.” The definition of “agent of a foreign power” is different for U.S. persons versus non-U.S. persons. Manafort is a U.S. person (a category that includes but is not limited to U.S. citizens). That means he can be the agent of a foreign power under FISA only if the government shows probable cause that he:

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;

(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

This means that in order for a U.S. person to qualify as the agent of a foreign power under FISA, there typically needs to be some indication of criminal conduct. That is not quite the same as the ordinary warrant requirement of a showing of probable cause that a crime has or will be committed—an important distinction.

Notably, CNN reported that two FISA warrants were issued against Manafort, first before he worked for the Trump campaign and then after he was no longer affiliated with it. The first “centered on work done by a group of Washington consulting firms for Ukraine's former ruling party” and was “discontinued at some point last year for lack of evidence.” While it is unclear when the second warrant began—former FBI director Jim Comey has testified that the FBI investigation began in July 2016—this time it was related to the investigation of “ties between Trump campaign associates and suspected Russian operatives.”

Manafort isn’t the first Trump adviser media reports have confirmed to be FISA targets. In April, the Washington Post reported that the government had obtained a FISA warrant against Trump adviser Carter Page also as “part of an investigation into possible links between Russia and the campaign.”

Are these leaks big deals and are they prosecutorial leaks?

Earlier this month, Lawfare published a guide to reading Trump-Russia stories and understanding where they are coming from. What can we say about these two reports?

Short answer: The CNN leak is bad. Let’s deal with the Times article first.

The Times story shows every indication of being principally sourced to the defense bar, particularly to lawyers for Manafort himself. The opening passage, as quoted above, is sourced to “two people close to the investigation.” But the passage contains no information that only prosecutors or investigators would know. And a defense lawyer for a soon-to-be-indicted target can reasonably be said to be “close to the investigation”—closer than he or she probably wants to be. The next paragraph describes the story more generally as coming from “lawyers, witnesses and American officials who have described the [hardball] approach” Mueller is taking. “American officials” here is consistent not just with people in Mueller’s office but with both congressional and White House staff—both of whose viewpoints the story sometimes reflects—and “lawyers” can be on the defense side as well as on the prosecution side.

There’s really only one passage in the story that gives rise to any suspicion of a prosecutorial disclosure:

His team has occasionally been caught by surprise, hearing of possibly important information only when it is revealed in the news media.

This could be a leak, a recent disclosure, but it could also reflect contact from the time of those earlier New York Times stories that took Mueller’s staff by surprise. It is not unheard of, and not necessarily inappropriate, for investigators to make contact with journalists who have gotten ahead of them on key matters by way of catching up.

The CNN story is a different matter. The story discloses FISA wiretaps against a named U.S. person. Whatever Paul Manafort may have done, he is a citizen of this country, and this is an egregious civil liberties violation. It’s also a significant compromise of national security information. Simply put, FISA information should never leak. When it does, it erodes the systems through which the government protects national security—and it rightly erodes public confidence that the systems designed to protect civil liberties work as intended.

Political leaking of wiretapping information is the stuff of the Hoover era. It has no legitimate place in our politics.

Who is responsible for this particular leak is unclear. The story is, for starters, vaguely sourced. Here are all the sourcing references in the story:

US investigators wiretapped former Trump campaign chairman Paul Manafort under secret court orders before and after the election, sources tell CNN…

…

Some of the intelligence collected includes communications that sparked concerns among investigators that Manafort had encouraged the Russians to help with the campaign, according to three sources familiar with the investigation. Two of these sources, however, cautioned that the evidence is not conclusive.

…

A secret order authorized by the court that handles the Foreign Intelligence Surveillance Act (FISA) began after Manafort became the subject of an FBI investigation that began in 2014. It centered on work done by a group of Washington consulting firms for Ukraine's former ruling party, the sources told CNN.

The surveillance was discontinued at some point last year for lack of evidence, according to one of the sources.

…

Sources say the second warrant was part of the FBI's efforts to investigate ties between Trump campaign associates and suspected Russian operatives.

…

The conversations between Manafort and Trump continued after the President took office, long after the FBI investigation into Manafort was publicly known, the sources told CNN.

…

Last year, Justice Department prosecutors concluded that there wasn't enough evidence to bring charges against Manafort or anyone of the other US subjects in the probe, according to sources briefed on the investigation.

This kind of sourcing is not ideal journalistic practice. It is possible that this is the best CNN could do given its relationship with the sources in question, but it’s not helpful to readers to have no information with which to assess a story like this. To wit, none of the references gives any indication of what sort of sources the story relies on, only that there appear to be at least three sources for individual facts and that some of them were “familiar with the investigation” and some were “briefed on the investigation.”

This isn’t a lot to work with, but here’s what we can say. The categories of people legitimately aware of FISA surveillance are not many. There are people associated with the FISA court. There are people associated with the FBI or the investigation. There are political echelon folks who receive intelligence product and sometimes underlying information about how it was obtained. And there are congressional oversight committees. With respect to FISA material, it’s reasonable to assume the sources here are not defense lawyers, as FISA material would not have been disclosed to them before any indictment. The sourcing is consistent with any of the above categories—or some combination of diverse sourcing among them.

For what it’s worth, a congressional or political echelon leak here seems to us more likely than either an investigative leak from Mueller’s shop or a leak from the court. The FISA court has been a black box since its creation in 1978. Mueller’s shop has been very quiet since its inception—and these leaks are to a considerable degree at his expense. The world, after all, now knows (assuming the story is true) that he has Manafort tapes during a period in which Trump was talking to Manafort; and Trump now has a great talking point about how his claims of having had his “wires tapped” have been vindicated. In that sense, at least, it’s a bad day for Mueller.

So was Trump right to say that he was “wire tapped”?

No.

Nothing in this report vindicates Trump’s claims that he or Trump Tower were wiretapped.

This story reports that Manafort was a target of collection and that Trump was talking with him at the time Manafort was under surveillance. It does not report that Trump Tower, where Manafort did have an apartment, was the location of that targeting.

Press reports have indicated for months that at least one, and potentially multiple, close associates of Donald Trump were subject to FISA warrants. It is possible now—as has been noted many times since Trump tweeted his accusation in March—that if the U.S. president was in communication with these individuals, his communications might have been incidentally collected. That isn’t the same as being wiretapped—and being subject to incidental collection as part of lawful collection against a third party really is not the same thing as being wiretapped by President Obama. House Intelligence Committee Chairman Devin Nunes has already attempted to spin incidental collection into presidential vindication in a bizarre series of press conferences unveiling intelligence revelations—which later turned out to have been fed to him by the White House itself.

CNN reported that it is “unclear whether Trump himself was picked up on the surveillance.” But there isn’t anything untoward about incidental collection, even if it did happen. It happens routinely in both criminal and intelligence contexts, when non-targeted individuals communicate with the target. To the extent that there has been significant additional confirmation of incidental collection of Trump campaign staff, it came in the form of the resolution of the “unmasking” stories also pushed by Nunes and in conservative media. Multiple stories confirm that Obama officials unmasked the names of Trump campaign officials in order to give proper context to intelligence information related to their interactions with foreign officials. Both Republicans and Democrats on the intelligence committees have concluded that there was no wrongdoing by Obama officials, and current national security advisor H.R. McMaster has determined that his predecessor, Susan Rice, did nothing wrong. Those stories contain more explicit confirmation of incidental collection than does this newest bombshell. For those who don’t believe those prior stories vindicate Trump’s claim of wiretapping—and we do not think they do—then neither does this one.

What does this mean for the future of the Trump-Russia investigation?

No one knows for sure—and take with a grain of salt anyone who predicts things confidently. It’s clear that L’Affaire Russe isn’t going away anytime soon. It’s clear that Mueller knows a great deal that the rest of us do not. And it’s clear that the White House’s public dismissiveness aside, there is real reason for the president and his coterie to worry about the many shoes left to drop. Beyond that, things remain very murky.

Consider, for example, that for all the Times’ certainty that Manafort will be indicted, neither the Times nor CNN gives much hint beyond the vaguest phrases of what charges might be expected. People anticipating a swift end to this drama should temper their expectations.

Susan Hennessey is the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She is a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.

Shannon Togawa Mercer is the Managing Editor of Lawfare. She graduated from the Georgetown University Law Center cum laude, where she was the Editor-in-Chief of the Georgetown Journal of International Law. In 2011, she graduated cum laude from Princeton University with an A.B. in Politics and minors in Near Eastern Studies and Arabic Language. Shannon is originally from the Commonwealth of the Northern Mariana Islands.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books and is co-chair of the Hoover Institution's Working Group on National Security, Technology, and Law.